The term parliamentary privileges is used in Constitutional writings to
denote both these types of rights and immunities. Sir Thomas Erskine May
has defined the expression Parliamentary privileges as follows: The sum
of the peculiar rights enjoyed by each house collectively is a constituent
part of the High Court of Parliament, and by members of each house of
parliament individually, without which they cannot discharge their
functions, and which exceed those possessed by other bodies or
individuals.

Parliamentary Privileges

A.105.Powers, privileges, etc., of the Houses of Parliament and of the
members and committees thereof
1. Subject to the provisions of this Constitution and the rules and
standing orders regulating the procedure of Parliament, there shall be
freedom of speech in Parliament.

2. No member of Parliament shall be liable to any proceeding in any court
in respect of anything said or any vote given by him in Parliament or any
committee thereof, and no person shall be so liable in respect of the
publication by or under the authority of either House of Parliament of any
report, paper, votes or proceedings.

3. In other respects, the powers, privileges and immunities of each House
of Parliament, and the members and the committee of each House, shall be
such as may from time to time be defined by Parliament by law, and until
so defined, [shall be those of that House and of its members and
committees immediately before the coming into force of Section 15 of the
Constitution (44th Amendment) Act, 1978].

4. The provision of clauses (1), (2), and (3) shall apply in relation to
persons who by virtue of this Constitution have the right to speak in, and
otherwise to take part in the proceedings of, a House of Parliament or any
committee thereof as they apply in relation to the members of Parliament.

Parliamentary privileges-this article defines parliamentary privileges of
both Houses of Parliament and of their members and committees. Article
194, which is an exact reproduction of Article 105, deals with the State
Legislatures and their members and committees. To enable Parliament to
discharge functions properly the Constitution confers on each member of
the Houses certain rights and immunities and also certain rights and
immunities and powers on each house collectively. Parliamentary privilege
is an essential incident to the high and multifarious functions which the
legislature is called upon to perform. According to May, the distinctive
mark of a privilege is its ancillary character a necessary means to
fulfillment of functions. Individual members enjoy privileges because the
House cannot perform its function without unimpeded use of the services of
its members and by each House for the protection of its members and the
vindication of its own authority and dignity.

In defining parliamentary privilege this article adopts certain method.
Two privileges, namely, freedom of speech and freedom of publication of
proceedings, are specifically mentioned in clauses (1) and (2). With
respect to other privileges of each House, clause (3) before its amendment
in 1978 laid down that the powers, privileges and immunities shall be
those of the House of Commons of the United Kingdom at the commencement of
the Constitution until they are defined by an Act of
Parliament. Though since 1978 position has changed in so far as the
privileges of parliament, its members and committees have to be determined
on the basis of what they were immediately before the commencement of 1978
amendment i.e., before 20th June 1979.

Freedom of speech

Article 105, clause (1), expressly safeguards freedom of speech in
parliament. It says: there shall be freedom of speech in parliament.
Clause (2) further provides that no member of Parliament shall be liable
to any proceedings in any court in respect of anything said or any vote
given by him in parliament or any committee thereof. No action, civil or
criminal, will therefore lie against a member for defamation or the like
in respect of things said in parliament or its committees. The immunity is
not limited to mere spoken words; it extends to votes, as clause (2)
specifically declares, viz. any vote given by him in parliament or any
committee thereof. Though not expressly stated, the freedom of speech
would extend to other acts also done in connection with the proceedings of
each House, such as, for notices of motions, questions, reports of the
committee, or the resolutions.

It may be noted that clause (1) of Article 105 is made Subject to the
provisions of this constitution and to the rules and standing orders
regulating the procedures of Parliament. The words regulating the
procedures of Parliament occurring in clause (1) should be read as
covering both the provisions of the Constitution and the rules and
standing orders. So read, freedom of speech in Parliament becomes subject
to the provisions of Constitution relating to the procedures of
Parliament, i.e., subject to the articles relating to procedures in Part V
including Articles 107 and 121. Thus for example, freedom of speech in
Parliament would not permit a member to discuss the conduct of any judge
of the Supreme Court or of a High Court. Likewise, the freedom of speech
is subject to the rules of procedures of a House, such as use of
unparliamentary language or unparliamentary conduct.

The freedom of speech guaranteed under clause (1) is different from that
which a citizen enjoys as a fundamental right under Article 19 (1) (a).
the freedom of speech as a fundamental right does not protect an
individual absolutely for what he says. The right is subject to reasonable
restrictions under clause (2) of Article 19. The term ?freedom of speech?
as used in this article means that no member of Parliament shall be liable
to any proceedings, civil and criminal, in any court for the statements
made in debates in the Parliament or any committee thereof. The freedom of
speech conferred under this article cannot therefore be restricted under
Article 19 (2) . Clauses (1) and (2) of Article 105 protect what is said
within the house and not what a member of Parliament may say outside.
Accordingly, if a member publishes his speech outside Parliament, he will
be held liable if the speech is defamatory . Besides, the freedom of
speech. To which Article 105 (1) and (2) refer, would be available to a
member of Parliament when he attends the session of Parliament, no
occasion arises for the exercise of the right of freedom of speech, and no
complaint can be made that the said right has been invalidly invaded.

Article 105 (2) confers immunity, inter alia, in respect of anything said
in Parliament the word anything is of the widest import and is equivalent
to everything. The only limitation arises from the words in Parliament,
which means during the sitting of Parliament and in the course of business
of Parliament. Once it was proved that Parliament was sitting and its
business was transacted, anything said during the course of that business
was immune from proceedings in any court. This immunity is not only
complete but it is as it should be. It is one of the essence of
parliamentary system of government that people's representative should be
free to express themselves without fear of legal expenses. What they say
is only subject to the discipline of the rules of Parliament, the good
sense of the members and the control of proceedings by the speaker. The
courts have no say in the matter and should really have none.

In a much publicized matter involving former Prime Minister, several
ministers, Members of Parliament and others a divided Court, in
P.V.Narsimha Rao v. State has held that the privilege of immunity from
courts proceedings in Article 105 (2) extends even to bribes taken by the
Members of Parliament for the purpose of voting in a particular manner in
Parliament. The majority (3 judges) did not agree with the minority (2
judges) that the words in respect of in Article 105 (2) mean, arising out
of and therefore would not cover conduct antecedent to speech or voting in
Parliament. The court was however unanimous that the members of Parliament
who gave bribes, or who took bribes but did not participate in the voting
could not claim immunity from court proceeding's under Article 105 (2).
The decision has invoked so much controversy and dissatisfaction that a
review petition is pending in the court.

Right of Publication of proceedings

Clause (2) of Article 105 expressly declares that no person shall be
liable in respect of the publication by order under the authority of a
house of Parliament, of any report, paper, votes or proceedings. Common
law accords the defence of qualified privilege to fair and accurate
unofficial reports of parliamentary proceedings, published in a newspaper
or elsewhere. In Wason v. Walter , Cockburn, C.J. observed that it was of
paramount public and national importance that parliamentary proceedings
should be communicated to public, which has the deepest interest in
knowing what passes in Parliament. But a partial report or a report of
detached part of proceedings published with intent to injure individuals
will be disentitled to protection. The same is the law in India. The
Parliamentary Proceedings (Protection of Publication) Act, 1956 enacts
that no person shall be liable to any proceedings, civil or criminal, in a
court in respect of the publication of a substantially true report of the
proceedings in either House of the Parliament, unless it is proved that
the publication is made with malice.

Other privileges
Clause (3) of Article 105, as amended declares that the privileges of each
House of Parliament, its members and committees shall be such as
determined by Parliament from time to time and until Parliament does so,
which it has not yet done, shall be such as on 20th June 1979 i.e., on the
date of commencement of Section 15 of the 44th Amendment. Before the
amendment this clause has provided that until Parliament legislates the
privileges of each House and its members shall be such as those of the
House of Commons in England at the time of commencement of the
Constitution. As the position till 20th June 1979 was determined on the
basis of original provision, it is still relevant to refer to the law as
it has been in the context of English law. In that perspective it may be
emphasized that there are certain privileges that cannot be claimed by
Parliament in India. For example, the privileges of access to the
sovereign, which is exercised by the House of Commons through its Speaker
to have at all times the right of access to the sovereign through their
chosen representative can have no application in India.

Similarly, a general warrant of arrest issued by Parliament in India
cannot claim to be regarded as a court of record in any sense . Also the
privilege of the two Houses of Parliament, unlike the privileges of the
House of Commons and House of Lords in England are identical. To each
House of Parliament, accordingly, belong the privileges, which are
possessed by the House of Commons in the United Kingdom.

In India freedom from arrest has been limited to civil causes and has not
been applied to arrest on criminal charges or to detention under the
Preventive Detention Act . Also there is no privilege if arrest is made
under s.151 Criminal Procedure Code . It has been held in K. Anandan Kumar
v. Chief Secretary, Government of Madras , that matters of Parliament do
not enjoy any special status as compared to an ordinary citizen in respect
of valid orders of detention.
In India, the rules of procedure in the House of People give the chair the
power, whenever it thinks fit, of ordering the withdrawal of strangers
from any part of the House and when the House sits in a secret session no
stranger is permitted to be present in the chamber, lobby or galleries.
The only exceptions are the members of the Council of States and the
persons authorized by the Speaker.

In Pandit M.S.M Sharma v. Shri Krishna Sinha, proceedings for the breach
of privilege had been started against an editor of a newspaper for
publishing those parts of the speech of a member delivered in Bihar
legislative assembly which the speaker had ordered to be expunged from the
proceedings of the Assembly. The editor in a writ petition under A. 32
contended that the House of Commons had no privilege to prohibit either
the publication of the publicly seen and heard proceedings that took place
in the House or of that part of the proceedings which had been directed to
be expunged. The Supreme Court by a majority of four to one rejected the
contention of the petitioner. Das C.J., who delivered the majority
judgment, observed that the House of Commons had at the commencement of
our Constitution the power or privilege of prohibiting the publication of
even a true and faithful report of the debates or proceedings that took
place within the House. A fortiori the House had at the relevant time the
power or privilege of prohibiting the publication of an inaccurate version
of such debates or proceedings.
Now Article 361-A inserted by the 44th Amendment with effect from June 20,
1979 provides that no person shall be liable to any proceedings civil or
criminal for reporting the proceedings of either House of Parliament or a
State Legislature unless the reporting is proved to have been made with
malice. This provision does not apply to the reporting of proceedings of
secret sittings of the Houses.

In India there also vest a right of the House to regulate its own
constitution. When a seat of a member elected to the house becomes vacant,
the Election Commission, by a notification in the Gazette of India calls
upon the Parliamentary constituency concerned to elect a person for the
purpose of filling the vacancy. In India, Article 103 expressly provides
that if any question arises as to whether a member of either House of
Parliament has become subject to any of the disqualifications, the
question shall be referred to the President whose decision shall be final.
The President is however required to act in this behalf according to the
opinion of Election Commission.

As far as right to regulate internal proceedings are concerned Article 122
expressly provides that the validity of any proceedings shall not be
called in question on the ground of any alleged irregularity of procedure,
and no officer or member of Parliament in whom powers are vested by or
under the Constitution for regulating the procedure or the conduct of
business or for maintaining order in Parliament shall be subject to the
jurisdiction of any court in respect of the exercise by him of those
powers.

Law Courts and Privileges

Article 105, so also Article 194 subjects the powers, privileges and
immunities of each House as well as all its members and all its committees
not only to the laws made by the appropriate legislature but also to all
other provisions of the Constitution. Both these articles far from dealing
with the legislative powers of the Houses of Parliament or of State
Legislature respectively are confined in scope to such powers of each
House as it may exercise separately functioning as a House.

A House of Parliament or Legislature cannot try anyone or any case
directly as a court of justice can, but it can proceed quasi judicially in
cases of contempt of its authority or take up motions concerning its
privileges and immunities in order to seek removal of obstructions to the
due performance of its legislative functions. If any question of
jurisdiction arises as to a certain matter, it has to be decided by a
court of law in appropriate proceedings. For example, the jurisdiction to
try a criminal offence such as murder, committed even within a House vests
in ordinary courts and not in a of Parliament or in a State Legislature.
Also, a House of Parliament or State Legislature cannot in exercise of any
supposed powers under Articles 105 and 194 decide election disputes for
which special authorities have been constituted under the Representation
of People Act, 1951 enacted in compliance with Article 329.

Parliamentary Privileges and Fundamental Rights

In Pandit M.S.M. Sharma's case it was also contended by the petitioner
that the privileges of the House under A.194 (3) are subject to the
provision of Part III of the Constitution. In supposrt of his contention
the petitioner relied n the Supreme Court's decision in Gunupati Keshavram
Reddi v. Nafisul Hasan. In this latter case Homi Mistry was arrested at
his B'bay residence under a warrant issued by the Speaker of U.P. Assembly
for contempt of the House and was flown to Lucknow & kept in a hotel in
Speaker's custody. On his applying for a writ of habeas corpus, the
Supreme Court directed his release as he had not been produced before a
magistrate within 24 hours of his arrest as provided in Article 22 (2).
This decision therefore indicated that Article 194 (or Article 105) was
subject to the Articles of Part III of the Constitution.

In Sharma's case the Court held that in case of conflict between
fundamental right under Article 19 (1) (a) and a privilege under Article
194 (3) the latter would prevail. As regards Article 21, on facts the
Court did not find any violation of it. In Powers, Privileges and
Immunities of the State Legislature, Re , the proposition laid down in
Sharma's case was explained not to mean that in all cases the privileges
shall override the fundamental rights.

The rules of each House provide for a committee of privileges. The matter
of breach of privilege or contempt is referred to the committee of
privileges. The committee has power to summon members or strangers before
it. Refusal to appear or to answer or to knowingly to give false answer is
itself a contempt. The committee's recommendations are reported to the
House which discusses them and gives its own decision.

Article 194 Powers, privileges, etc.

of the Houses of Legislature
and of the members and committees thereof.
1. Subject to the provisions of this Constitution and to the rules and
standing orders regulating the procedure of the Legislature, there shall
be freedom of speech in the Legislature of every State.

2. No member of the Legislature of a State shall be liable to any
proceeding in any court in respect of anything said or any vote given by
him in the Legislature or any committee thereof, and no person shall be so
liable in respect of the publication by or under the authority of a House
of such a Legislature of any report, paper, votes or proceedings.

3. In other respects, the powers, privileges and immunities of a House of
the Legislature of a State, and of the members and the committees of a
House of such Legislature, shall be such as may be defined from time to
time be defined by the Legislature by law, and until so defined, shall be
those of that House and of its members and committees immediately before
the coming into force of Section 26 of the Constitution (Forty Fourth
Amendment) Act, 1978.

4. The provisions of clauses (1), (2) and (3) shall apply in relation to
persons who by virtue of this Constitution have the right to speak in, and
otherwise to take part in the proceedings of, a House of the Legislature
of a State or any committee thereof as they apply in relation to members
of that Legislature.

This article that applies to the State Legislatures and members and
committees thereof is an exact reproduction of Article 105, which applies
to both Houses of Parliament and committees thereof.

Clause (1)- of this article declares that there shall be freedom of speech
in the legislature of every State. This freedom is subject to the
provisions of Articles 208 and 211 . A member cannot accordingly raise
discussions as to the conduct of a Supreme Court or High Court judge as A.
211 prohibits it. The provisions of the Constitution subject to which
freedom of speech has been conferred on the legislators are not the
general provisions of the Constitution but only such of them as relate to
the regulation of the procedure of the Legislature. The freedom of speech
guaranteed to citizens under A. 19 (1) (a) is therefore separate and
independent of Article 194 (1) and does not control the first part of
clause 1 of A.194.

Clause (2)- emphasizes the fact that the freedom of speech conferred on
the Legislatures under clause (1) is intended to be absolute and
unfettered. Similar freedom is guaranteed to the legislators in respect of
the votes they may give in the Legislature or committees thereof. Thus, if
a legislator exercises aright of freedom of speech in violation of A. 211
he would not be liable for any action in any court. Likewise, if the
legislator by his speech or vote is alleged to have violated any of the
fundamental rights guaranteed by Part III of the Constitution in the
Legislative Assembly, he would not be answerable for the said
contravention in any court. If the speech amounts to libel or becomes
actionable or indictable under any other provision of the law immunity has
been conferred on him from any action in any court by clause (2). He may
be answerable to the House for such a speech and the Supreme Court may
take appropriate action against him in respect of it. Thus clause (1)
confers freedom of speech to the legislators within the legislative
chambers and clause (2) makes it plain that the freedom is literally
absolute.

Clause (3)- the first art of this clause empowers the State Legislature to
make laws Prescribing its powers, privileges and immunities. If the
Legislature of a State under the first part of clause (3) makes a law
which prescribes its powers, privileges and immunities, such law would be
subject to Article 13 and clause (2) of that article would render it void
if it contravenes or abridges any of the fundamental rights guaranteed by
Part III.

The right of State Legislatures to punish for contempt can be discussed
with the case law of Powers, Privileges and Immunities of State
Legislature, Re. The reference was a sequel to the passing of an order by
an unprecedented Full Bench of 28 judges staying, under Article 226, the
implementation of the U.P.

Assembly resolution ordering two judges of Allahabad High Court to be
brought in custody before the Bar of the House to explain why they should
not be punished for the contempt of the House. The two judges had admitted
the habeas corpus petition of and granted bail to one Keshav Singh who was
undergoing imprisonment in pursuance of the Assembly Resolution declaring
him guilty of the breach of privilege. The resolution of the Assembly and
the stay order issued by the Full Bench resulted in a constitutional
stalemate. Consequently, the president referred the matter under Article
143 to the Supreme Court for its opinion. The Supreme Court by a majority
of 6:1, through an elaborate and learned opinion delivered by
Gajendragadkar, C.J., held that in India notwithstanding a general warrant
issued by the Assembly, the Courts could examine the legality of the
committal in proper proceedings.

Other propositions were also laid down in the majority judgment. It said
that Article 194 (3) cannot be read in isolation. The impact of Articles
226, 32 and 211 had to be ascertained in order to determine the scope of
Article 194. Article 226 empowers the High Court to issue a writ of habeas
corpus against any authority. This would include the legislature since no
exception is made in favour of a detention order by the House for the
breach of its privileges. Article 211 on the other hand unambiguously
indicates that the conduct of a judge in the discharge of his duties can
never become the subject matter of any action taken by the House in
exercise of its powers or privileges conferred by the latter part of
Article 194 (3). The fact that the first part of Article 194 (3) refers to
future laws defining the privileges as being subject to fundamental rights
is a significant factor in construing the latter part of Article 194. Such
a state legislation would be law within the meaning of article 13 and the
courts will be competent to examine its validity vis-à-vis the fundamental
right. Although no opinion was tendered as regards fundamental rights in
general, it was made clear that so far as Articles 21 and 22 are
concerned, any privileges etc., which are claimed, must be consistent with
these articles in the context of Article 208.

Conclusion
There is a clear demarcation as to what all rights and privileges are
absolute and what are not. For example, in India Legislative Assemblies
and Parliament never discharge any judicial function and their historical
and constitutional background does not support their claim to be regarded
as courts of record in any sense. No immunity from scrutiny by courts of
general warrants issued by House in India can therefore be claimed.

Both the Parliament and State Legislatures have a duty to look carefully
before making any law, so that it doesn't harm other rights. It is also a
duty of the members to properly use these privileges and not misuse them
for alternate purposes that is not in the favour of general interest of
nation and public at large. Thus what we must keep in mind is the fact
that ?power corrupts and absolute power corrupts absolutely. For this not
to happen under the privileges granted, the public and the other governing
body should always be on vigil.
***************
End Notes:-
1.Sir Thomas Erskine May: Parliamentary Practice, 16th Edn., Chapter III,
p.42.
2.Tej Kiran Jain v. N. Sanjeeva Reddy, (1970) 2 SCC 272: AIR 1970 SC 1573.
3.Pandit M.S.M. Sharma v. Sri Krishna Sinha, AIR 1959 SC 395, 409.
4.P.V.Narsimha Rao v. State (1998) 4 SCC 626
5.Jatish Chandra Ghosh v. Harisadhan Mukharjee AIR 1956 Cal 433.
6.K. Anandan Nambiar v. Chief Secretary, Government of Madras, AIR 1966 SC
657, 664: (1996) 2 SCR 406
7.Tej Kiran Jain v.N. Sanjiva Reddy (1970) 2 SCC 272:AIR 1970 SC 1573
8.(1998) 4 SCC 626
9.LR 4 QB 73
10.Powers, Privileges and Immunities of the State Legislature, Re, AIR
1965 SC 745: (1965) 1 SCR 413.
11.Ansumali Majumdar v. State of W.B. AIR 1952 Cal. 632
12.AIR 1962 Cal 632
13.AIR 1966 SC 657
14.Rule 248: there are similar provisions in the rules of Rajya Sabha.
15.AIR 1959 SC 395: 1959 Supp (1) SCR 806.
16.State of Karnataka v. Union of India (1977) 4 SCC 608, 654
17.Indira Nehru Gandhi v.Raj Narain 1975 Supp.SCC 1, 47: AIR 1975 SC 2299
19.AIR 1965 SC 745, 7652
20.In case of Parliament, Articles 118 and 120.
21. AIR 1965 SC 745.